McGillivary v. New Brunswick and Moncton (City), (1993) 140 N.B.R.(2d) 365 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 17, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 140 N.B.R.(2d) 365 (TD)

McGillivary v. N.B. (1993), 140 N.B.R.(2d) 365 (TD);

    140 R.N.-B.(2e) 365; 358 A.P.R. 365

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Pauline McGillivary (plaintiff) v. The Province of New Brunswick and the City of Moncton (defendants)

(M/C/1058/90)

Indexed As: McGillivary v. New Brunswick and Moncton (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Paul S. Creaghan, J.

November 24, 1993.

Summary:

The plaintiff was charged with second degree murder, committed to stand trial and released on bail after 10 weeks. The Crown withdrew the charge before arraignment. The plaintiff sued the provincial Crown, claiming the negligence of its employees and agents violated her s. 7 Charter right to liberty in a manner not in accordance with the principles of fundamental justice. The plaintiff sought damages under s. 24(1) of the Charter. Pursuant to rule 23.01(1)(a), two preliminary questions were referred for determination: (1) whether ss. 2 and 4 of the Proceedings Against the Crown Act provide a complete or partial defence to the action and (2) whether Crown immunity at common law provided a complete or partial defence.

The New Brunswick Court of Queen's Bench, Trial Division, answered the first question affirmatively and found it unnec­essary to answer the second. If the plaintiff had established a breach of her right to liberty contrary to the principles of funda­mental justice, the Crown's statutory im­munity could not preclude the plaintiff obtaining relief under s. 24(1) of the Charter.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Crown - Topic 2887 ].

Civil Rights - Topic 8351

Canadian Charter of Rights and Freedoms - Application - Exceptions - Crown immunity - [See Crown - Topic 2887 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Crown - Topic 2887 ].

Crown - Topic 2887

Crown immunity - Exceptions - Denial of Charter rights - The Crown withdrew a second degree murder charge against the plaintiff - The plaintiff was detained 10 weeks before release on bail - The plain­tiff sued the provincial Crown, claiming the negligence of its agents and employees violated her s. 7 Charter right to liberty contrary to the principles of fundamental justice - The plaintiff claimed damages under s. 24(1) - The Proceedings Against the Crown Act afforded absolute immunity from a malicious prosecution action - The New Brunswick Court of Queen's Bench, Trial Division, held that there was no absolute statutory immunity where the plaintiff's Charter rights were infringed (constitutional tort) - However, the plain­tiff failed to establish a Charter rights denial - There was no evidence of depri­vation of liberty contrary to the principles of fundamental justice - A bare allegation of a constitutional tort was insufficient - Sections 2 and 4 of the Proceedings Against the Crown Act provided the Crown a complete defence in this case.

Crown - Topic 4428

Actions by and against provincial Crown - Proceedings against the Crown Acts - Limitations on application of Acts - [See Crown - Topic 2887 ].

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 5].

Levesque v. Picard and Minister of Justice (1985), 66 N.B.R.(2d) 87; 169 A.P.R. 87 (C.A.), refd to. [para. 17].

Perley v. Sypher et al. (1989), 96 N.B.R.(2d) 354; 243 A.P.R. 354 (Q.B.), refd to. [para. 25].

Levesque v. Canada (Attorney General), [1986] 2 F.C. 287 (T.D.), refd to. [para. 25].

R. v. McGillivary (1990), 107 N.B.R.(2d) 361; 267 A.P.R. 361 (C.A.), refd to. [para 35].

Charters v. Harper (1987), 79 N.B.R.(2d) 28; 201 A.P.R. 281 (Q.B.), refd to. [para. 37].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 26]; sect. 24(1) [para. 4].

Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, sect. 2, sect. 4 [para. 2].

Proceedings Against the Crown Act, R.S.O. 1980, c. 393, sect. 5(6) [para. 16].

Rules of Court (N.B.), rule 23.01(1)(a) [para. 1].

Counsel:

Gabriel Bourgeois, for the defendant, Province of New Brunswick;

Charlotte Robinson, for the defendant, City of Moncton;

Brian D. Doucet, for the plaintiff.

This case was heard on November 17, 1993, at Moncton, N.B., before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on November 24, 1993.